What happens to H1B if traveling on AP??

U

usrfdluj

Registered Users (C)
Friends,

I heard conflict theory on H1B's validity after re-entering the US
through AP. Some people say that H1B will become invalid and one must work
on valid EAD; other people say that the H1B status is still valid even
though one uses AP for re-entrance. I certainly don't want to lose my H1B (so does my wife) as it provides a legal status in case I-485 were denied.

I asked my attorney, and here is the reply:
"...your H1B will not become invalid if you travel on your AP. Sometimes there is some confusion with the inspectors since they see both a H1B and AP in the system. We recommends that you travel on your AP but also carry your H1B in case of confusion. If you choose to travel on your H1B, you need to be sure that your Visa stamp is valid for the timeframe in which you want to travel. Once we get closer to your travel time, please let me know if you will require a new Visa stamp. If so, I will obtain the appropriate
information/documents that you will require to obtain a new Visa stamp
while you are in China..."

But Upon arriving on AP, our I-94 will be stamped and annotated with DOS
(duration of stay) as the expiration of AP/EAD, and Status as AOS instead
of H1. If our H1Bs are still valid, while the DOS annotated in our new
I-94s are expired, shall this be a concern? In case like this, suppose our
I-485 was denied for any reason, can we still legally work for our employers?

Please shed some lights on this topic, if you had similar experience. Thank you!!! :p
 
I asked the same question from my lawyer. He told me to get the H1 stamp at any cost when I went back to my home country. He said that if I arrive US with my AP then, I am considered as a parollee. In this case if my I-485 was denied then I don't have a legal status in US to appeal for the I-485. Since this was too confusing, I decided to get my PP stamped with the visa and come to US as H-1. However I still carried my AP with me.
Any other thoughts?
 
usrfdluj said:
Friends,

I heard conflict theory on H1B's validity after re-entering the US
through AP. Some people say that H1B will become invalid and one must work
on valid EAD; other people say that the H1B status is still valid even
though one uses AP for re-entrance. I certainly don't want to lose my H1B (so does my wife) as it provides a legal status in case I-485 were denied.

I asked my attorney, and here is the reply:
"...your H1B will not become invalid if you travel on your AP. Sometimes there is some confusion with the inspectors since they see both a H1B and AP in the system. We recommends that you travel on your AP but also carry your H1B in case of confusion. If you choose to travel on your H1B, you need to be sure that your Visa stamp is valid for the timeframe in which you want to travel. Once we get closer to your travel time, please let me know if you will require a new Visa stamp. If so, I will obtain the appropriate
information/documents that you will require to obtain a new Visa stamp
while you are in China..."

But Upon arriving on AP, our I-94 will be stamped and annotated with DOS
(duration of stay) as the expiration of AP/EAD, and Status as AOS instead
of H1. If our H1Bs are still valid, while the DOS annotated in our new
I-94s are expired, shall this be a concern? In case like this, suppose our
I-485 was denied for any reason, can we still legally work for our employers?

Please shed some lights on this topic, if you had similar experience. Thank you!!! :p
Click to expand...
Your lawyer is correct. You can enter on AP and you will remain on H1 status.
The date on the I94 stamp (which will be +1 year from the date of entry on AP) is meaningless.
Your H status is determined by the dates on the H approval and you need get extensions on that as usual. You are not in AOS status when you enter using AP - you still retain your H status. Nothing changes till you decide to start working on EAD. (or when you get your 485 approved !!)

There is NO impact to H status when you re-enter on AP.
See the Cronin Memo for details.
 
ganen05 said:
let's see, you can travel using either AP or H1B, the differences are:

using AP, you can enjoy your time and come back, but your H1B will be invalid (because of no stamp), your need work on EAD. you need renew your EAD every year for working while waiting for GC, also renew AP for travel if needed.( that was what we did)

using H1B, you need to get H1B stamp (if you don't have one on your PP) during your trip for coming back. then you still have your H1B valid. if your GC get denied for any reason (forgive me), you are still legial for working on H1B as long as your H1B is valid.

we also wanted to keep our H1B last year, but we didn't try to get the stamp since I have a friend, he waited about 8 months in his homecountry for the H1B stamp. he almost lost his job. thers is another choice, if you still want to keep your H1B, after you come back from your trip using AP/EAD, you can reapply a H1B.

hope this help.
Click to expand...
Am sorry -- that information is INCORRECT.

Please refer to the Cronin Memo link I posted earlier.
Using AP does NOT invalidate your H1 as you say ..... your H1 status remains intact. You don't have to re-apply or anything like that -- When required, just renew the H1 as you would've done normally.

So you can have your cake and eat it too ... enjoy the trip with no worries about stamping, come back on AP and retain full H1 status (& its perceived benefits)
 
I can confirm what max has said to be CORRECT as per my knowledge. H1 does not become invalid if you use your AP.
 
maybe you are right, Max2k1.
but that's what our attorney told us and my company told me that too. double check, we just want ourselves be safe.

good luck to everyone.
 
Thanks EVERYONE for your posts, really appreciate it!

max2k1 said:
Am sorry -- that information is INCORRECT.

Please refer to the Cronin Memo link I posted earlier.
Using AP does NOT invalidate your H1 as you say ..... your H1 status remains intact. You don't have to re-apply or anything like that -- When required, just renew the H1 as you would've done normally.

So you can have your cake and eat it too ... enjoy the trip with no worries about stamping, come back on AP and retain full H1 status (& its perceived benefits)
Click to expand...

max2k1,

Your information is by far the most detailed and relevant I've seen so far.

According to the Cronin Memo's answer to question 4, A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." .

In question 3, memo indicates one can still renew H1 status after paroled into the US, which means, the renewed H1B comes with a new I-94 card replacing the old I-94 obtained when paroled into the US. The sentense "If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification." to the best of my understanding is: when granting the H1B renewal, your parole status will be terminated and your H1B status will be re-admitted to H1B. This understanding somehow mis-match the statement made in question 4 that your H1 is not terminated upon using AP.

Another thing to watch out is, notice the statement "Until the final rule published," blah, blah, blah, so this is a interim rule and subject to change. That's something that makes me nervous.

I just hope my GC can be approved by the time of travel!

Thanks again everyone for your posts!
 
I came in with AP and several months later I renewed my H visa for a 7th year without a problem.
 
Here is what I think after giving a good reading.
Entering US with an advance parole does not in any way effect your H1 status. If you want you can still remain on H1.
The fact that you can apply for AP without applying for an EAD confirms that AP has nothing to do with EAD, its just a document that allows you to go out and reenter the US without a Visa stamping on your passport.
The officer at immigration does not ask for your EAD when you enter nor does he asks for your H1 stamping or even H1. In my opinion the AP is a complete document in itself that can allow you to re-enter the US.
AP seems to be a completely misunderstood document. It has nothing to do with EAD. I am thinking people who have their 485 pending and have still many years left on H1 should just keep renewing their AP if the stamped visa has expired, or transfered to another company. No need for going to the consulate to get the Visa stamped, thus avoiding all the hassles. No need to get an EAD either (if H1 is still not expired).
 
Don't worry about the "interim wording" and don't hold your breath for a final rule either :)
Cronin memo is way old -- I think it was issued sometime in 2000 and to date that's the only one that atleast talks about effects on H1 when using AP for re-entry.

I don't think USCIS would suddenly publish a new memo totally changing this concept overnight - so relax and enjoy ur trip !
 
what if change employer after using AP?

One more question. I saw from a popular law firm website about "h1b and AP". They said "if you come back to US via AP and return to the SAME employer who sponsors your H1B while you file AP, then your H1B will keep valid, otherwise, negative". Is this true?

This is happening to me now. I filed AP while working for company A and got approved. Now I am working for company B on a transfered H1B. I am planning to go abroad this winter and coming back using AP. Will I be still on H1B after that?
 
sulingli said:
One more question. I saw from a popular law firm website about "h1b and AP". They said "if you come back to US via AP and return to the SAME employer who sponsors your H1B while you file AP, then your H1B will keep valid, otherwise, negative". Is this true?

This is happening to me now. I filed AP while working for company A and got approved. Now I am working for company B on a transfered H1B. I am planning to go abroad this winter and coming back using AP. Will I be still on H1B after that?
Click to expand...

Yes
From Murthy.com
Chat User : Does one lose H-1 status if s/he used advance parole for returning to the USA?

Attorney Murthy : A person is allowed to use AP to reenter the U.S. and is also allowed to file an H1B extension soon after reentering on AP, and then revert to H1B status. Review the March and May 2000 Legacy INS Memos, which we have written about on our website and posted summaries of those articles.
 
Last edited by a moderator:
sulingli said:
One more question. I saw from a popular law firm website about "h1b and AP". They said "if you come back to US via AP and return to the SAME employer who sponsors your H1B while you file AP, then your H1B will keep valid, otherwise, negative". Is this true?

This is happening to me now. I filed AP while working for company A and got approved. Now I am working for company B on a transfered H1B. I am planning to go abroad this winter and coming back using AP. Will I be still on H1B after that?
Click to expand...
sulingli, on your first question, I think it's true. It does not conflict with the memo (H1 still valid after paroled into US), because the memo just assume you continue working for your H1 sponsor. Since H1 is employer specific, at anytime if you switch employer without getting a new H1 (transfer) or on EAD, your previous H1 will become invalid.

For your 2nd question, my wife is in the same situation. Your new company files a H1B transfer, and thus become the sponsor of your H1B. It is, in essence, a new H1B application except for not requiring H1B quota. You'll receive a new H1B approval notice, which will show the new company as your sponsor.

So my personal opinion is you will be fine with your H1.
 
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